50 F.

3d 842
63 USLW 2577

Rodolfo HERNANDEZ-AVALOS, et al., PetitionersAppellants,

v.
IMMIGRATION AND NATURALIZATION SERVICE, et al.,
Respondents-Appellees.
Nos. 94-1051, 94-1060, 94-1061 and 94-1066.

United States Court of Appeals,

Tenth Circuit.
March 9, 1995.

Michael G. Katz, Federal Public Defender, Vicki Mandell-King, Asst.

Federal Public Defender, Denver, CO, for petitioners.
Frank W. Hunger, Asst. Atty. Gen., Mark C. Walters, Asst. Director,
Office of Immigration Litigation, Alison R. Drucker, Attorney, Office of
Immigration Litigation, Civ. Div., Dept. of Justice, Washington, DC, for
respondents.

Before HENRY and LOGAN, Circuit Judges, and REED, District Judge.1

EDWARD C. REED, Jr., Senior District Judge.

The petitioners-appellants are four aliens serving federal prison sentences. Each
alien, having been convicted of a deportable offense and citing 8 U.S.C. Sec.
1252(i), sought a writ of mandamus from the District Court, compelling the
Immigration and Naturalization Service (INS) to initiate deportation
proceedings. The District Court dismissed the appellants' cases for lack of
jurisdiction, explaining that, because the statute itself provided no criteria for
evaluating the government's actions and there were no relevant regulations,
there was "no law to apply" to their cases and thus no way to fashion a remedy.

The cases were consolidated for purposes of appeal. In this court, the briefing

on both sides has focused primarily on a jurisdictional question: whether the

appellants have standing to seek mandamus. They do not, and the case can be
resolved on that basis.
5

The underlying substantive statute, 8 U.S.C. Sec. 1252(i), provides that "[i]n
the case of an alien who is convicted of an offense which makes the alien
subject to deportation, the Attorney General shall begin any deportation
proceedings as expeditiously as possible after the date of conviction." The
appellants' complaint is that the INS, rather than beginning deportation
proceedings "expeditiously" after an alien's conviction of a deportable offense,
has a policy, which it has followed here, of not beginning those proceedings
until the alien has finished serving the prison sentence resulting from the
conviction. The result is that the alien, having served his sentence and awaiting
deportation, remains in INS custody longer than he would had deportation
proceedings been initiated expeditiously after his conviction.2

On October 25, 1994, President Clinton signed into law the Immigration and
Nationality Technical Corrections Act of 1994, Pub.L. No. 103-416, 108 Stat.
4305. Section 225 of that statute provides that

[n]o amendment made by this Act and nothing in section 242(i) of the
Immigration and Nationality Act (8 U.S.C. 1252(i)) shall be construed to create
any substantive or procedural right or benefit that is legally enforceable by any
party against the United States or its agencies or officers or any other person.

At a minimum, the statute makes clear that there is no private right of action
under Sec. 1252(i). But we think it does more than that. It imposes upon Sec.
1252(i) a mandatory rule of construction compelling the conclusion that the
statute creates no right or benefit enforceable by any party against the federal
government or anyone else. The statute, in short, makes clear that Congress
intended that no one be able to bring suit to enforce Sec. 1252(i), which means
that no one can satisfy the zone of interests test, and therefore no would-be
plaintiff has standing to bring suit, either directly under the statute or by way of
the Mandamus Act.3

There is, moreover, an alternative basis for affirming the district court's
decision. Put simply, it is that the appellants in this case would lack standing to
sue even if Section 225, described above, had never been enacted. The reasons
are complex and we set them forth at some length.

10

There is no private right of action directly under Sec. 1252(i).4 The appellants

concede this and instead seek to enforce Sec. 1252(i) by means of relief issued
pursuant to the Mandamus and Venue Act, 28 U.S.C. Sec. 1361 (the
"Mandamus Act"). 5 We think that standing to seek mandamus in this case is
governed by the "zone of interests" test applicable in cases brought under the
Administrative Procedure Act (APA), for three reasons. First, it makes good
sense to treat claims for relief against government agencies--whether made
under the Mandamus Act or under the APA--identically with respect to
standing. The two statutes are, after all, merely different means of "compelling
an agency to take action which by law it is required to take." Soler v. Scott, 942
F.2d 597, 605 (9th Cir.) vacated sub nom. Sivley v. Soler, --- U.S. ----, 113
S.Ct. 454, 121 L.Ed.2d 364 (1992).6 Second, other circuits have come to the
same conclusion.7 Third, the conclusion follows naturally from this court's
prior holding that
11 mandatory injunction [issued under the APA] ... is essentially in the nature of
[a]
mandamus. Thus, jurisdiction for its issuance can be based on either Sec. 1361 or
Sec. 1331, or both.
12

With these jurisdictional bases, and whether we label the relief sought as
mandamus or a mandatory injunction, the issue remaining is whether
defendants here have failed to discharge a duty owed to plaintiffs which
Congress has directed them to perform.

13

Carpet, Linoleum and Resilient Tile Layers Local 419 v. Brown, 656 F.2d 564,
566-67 (10th Cir.1981) (citations omitted). That relief "in the nature of
mandamus" and mandatory injunctions are regarded as essentially equivalent
remedies suggests that standing to seek each ought to be judged by the same
standards.8

14

Further, the appellants can seek mandamus despite the absence of a private
right of action under Sec. 1252(i). That is not a generally accepted proposition,9
but we think that it is the law. In Soler, 942 F.2d at 605, the Ninth Circuit held
that "a petitioner who has alleged a cause of action under the APA or the
Mandamus Act need not rely upon an implied right of action under any other
statute." The Soler court relied on Legal Aid Society of Alameda County v.
Brennan, 608 F.2d 1319 (9th Cir.1979), in which the appellees did "not seek
recognition of a supplemental private enforcement mechanism," id. at 1332,
but, rather, review of the alleged failure of government officials to perform nondiscretionary duties. "The reluctance of courts to imply separate private
enforcement rights from statutes ... which provide explicitly only for
government enforcement procedures and penalties," the court explained, was
thus "not applicable." Id.

15

As noted above, Soler was vacated, and the Ninth Circuit has recently expressly
declined to decide "whether a plaintiff who lacks a private right of action under
the underlying statute might nevertheless be able to show the clear right to
relief required under the Mandamus Act." Barron v. Reich, 13 F.3d 1370, 1375
(9th Cir.1994). 10

16

We agree with the Soler court's reasoning on this point: a plaintiff "who has
alleged a cause of action under the APA or the Mandamus Act need not rely
upon an implied right of action under any other statute." Moreover, because
mandamus is properly sought where government officials "owe a duty" to the
plaintiff, and because a "duty" is "owed" in the administrative context if the
plaintiff's interest is within the "zone of interests" protected by the underlying
statute, all a plaintiff seeking mandamus in administrative litigation need show
is that the interest he seeks to vindicate falls within the statutory zone of
interests.

17

There are three reasons for this conclusion. First, it follows from prior decisions
in which this court has held that (1) a plaintiff who lacks a private right of
action under the underlying statute can bring suit under the APA to enforce the
statute, see Sierra Club v. Hodel, 848 F.2d 1068, 1076 (10th Cir.1988), and (2)
that "[a] mandatory injunction [issued under the APA] ... is essentially in the
nature of mandamus." Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at
566-67.

18

Second, both the "zone of interests" and "private right of action" inquiries relate
to the problem of third-party standing, but they arise in different procedural
contexts. The zone of interests test originated, and is useful primarily, in the
context of administrative litigation under the APA. See Ass'n of Data
Processing Orgs. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).
Given the APA's generous provisions for review, the test operates as a fairly
weak prudential restraint, requiring some non-trivial relation between the
interests protected by the statute and the interest the plaintiff seeks to vindicate.
See Clarke v. Securities Industry Ass'n, 479 U.S. 388, 399-400, 107 S.Ct. 750,
757, 93 L.Ed.2d 757 (1987). The "private right of action" argument, by
contrast, typically is made in non-administrative litigation, where "the zone-ofinterests test is simply a restatement of the general rule against third-party
standing." See Laurence H. Tribe, American Constitutional Law Sec. 3-19, at
144 & n. 70 (2nd ed. 1988). Faced with a statute whose enforcement is
(arguably) entrusted solely to the government and which thus contemplates
only the government as a plaintiff, the would-be private plaintiff argues for
implication of a private right of action--i.e., "recognition of a supplemental
private enforcement mechanism," Legal Aid Society, 608 F.2d at 1332--which

will allow him to proceed where he would otherwise be barred by the rule
against third-party standing.
19

Third, it is more difficult to establish a private right of action than to

demonstrate that one's interest falls within the zone of interests protected by the
statute. A "private right of action" inquiry asks, inter alia, whether the plaintiff
is a member of the class for whose benefit the statute was enacted, whether the
legislative history indicates an intent to create or deny such a remedy, and
whether implication of a private right of action would be consistent with the
underlying purposes of the statute. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct.
2080, 2087-88, 45 L.Ed.2d 26 (1975). On the other hand, the essential inquiry
in the zone of interests test in this circuit is whether "Congress intended for a
particular class of plaintiffs to be relied upon to challenge agency disregard of
the law," and there need be "no indication of congressional purpose to benefit
the would-be plaintiff." Mount Evans Co. v. Madigan, 14 F.3d 1444, 1452
(10th Cir.1994) (quoting Clarke, 479 U.S. at 399-400, 107 S.Ct. at 575)
(citations omitted) (internal quotation marks omitted). Thus, while neither test
is a model of precision, it seems clear that a plaintiff can satisfy the "zone of
interests" test while failing to meet the standard for implication of a private
right of action. Because standing under the Mandamus Act in administrative
litigation requires only satisfaction of the "zone of interests" test, it would make
no sense to require the would-be plaintiff to satisfy the more difficult Cort test
for implication of a private right of action under the underlying statute.

20

The question, then, is whether the appellants satisfy the zone of interests test. 11
That test has recently been summarized as follows:

21 essential inquiry is whether Congress intended for a particular class of plaintiffs

The
to be relied upon to challenge agency disregard of the law. The zone of interest test
is a guide for deciding whether, in view of Congress's evident intent to make agency
action presumptively reviewable, a particular plaintiff should be heard to complain
of a particular agency decision. The test is not meant to be especially demanding,
and there need be no indication of congressional purpose to benefit the would-be
plaintiff. A court must look at both the specific purpose of the statute and the more
general purpose of the act in which the statute is contained to determine whether a
plaintiff's injury falls within the zone of interests protected by the statute.
22

Mount Evans Co., 14 F.3d at 1452 (quoting Clarke, 479 U.S. at 399-400, 107
S.Ct. at 757) (emphasis added) (citations omitted) (internal quotation marks
omitted).

23

Section 1252(i) was enacted not for the benefit of incarcerated aliens, but for

the benefit of taxpayers, the objective being to save money at the federal, state
and local levels by deporting criminal aliens as soon as their sentences ended,
thus avoiding the expense of housing and feeding them while they awaited
deportation.12 No matter who the statute was intended to benefit, however, the
"essential inquiry is whether Congress intended for a particular class of
plaintiffs to be relied upon" to challenge the INS's disregard of the statute's
mandate.
24

In this case, it is doubtful that Congress intended that the statute would be
enforced by incarcerated aliens. There are two primary reasons. First, because
the statute was enacted for the benefit of federal, state and local prison systems,
the officials who run those systems would seem to be the "natural" (albeit
nominal) plaintiffs in any suit to enforce Sec. 1252(i), as their interests are
clearly among those protected by the statute. 13 Second, and more important,
Sec. 1252(i) confers considerable (though, of course, not unlimited) discretion
on the INS. It seems to us extremely unlikely that Congress would have wanted
the INS's discretion in prioritizing deportation cases to be upset by individual
suits brought by aliens seeking to expedite the handling of their own cases.

25

Because this suit is barred by Sec. 225 of the Immigration and Nationality
Technical Corrections Act of 1994, and because, even absent that statute, the
appellants would not satisfy the zone of interests test and would thus lack
standing to bring suit, the district court's dismissal of the case is AFFIRMED.
In light of our disposition of this case, the government's motion for summary
affirmance is DISMISSED as moot.

The Honorable Edward C. Reed, Jr., Senior United States District Judge for the
District of Nevada, sitting by designation

It should be noted that the appellants seek only to expedite the initiation of
deportation proceedings against them. They do not claim a right to be deported
before they finish serving their prison sentences. Nor could they, given section
1252(h)'s instruction that "[a]n alien sentenced to imprisonment shall not be
deported until such imprisonment has been terminated by release from
confinement." 8 U.S.C. Sec. 1252(h)
In their brief, the appellants quote an order issued by the District Court which
at least suggests that they committed aggravated felonies. In the case of
aggravated felons, Congress has set as a goal the completion of deportation
proceedings before the term of imprisonment ends, rather than merely the
initiation of such proceedings as soon as possible after conviction. See 8 U.S.C.

Sec. 1252a(d)(1). The appellants rely entirely on Sec. 1252(i). They do not
mention Sec. 1252a(d)(1) and we do not consider it.
3

There is no issue of retroactivity, because the aliens seek only prospective relief
(mandamus), and the court cannot mandate observance in the future of an
asserted statutory right which, even assuming that it existed at some point in the
past, clearly no longer exists. See Nader v. Saxbe, 497 F.2d 676, 680-81
(D.C.Cir.1974)

See Immigration and Nationality Technical Corrections Act, Pub.L. No. 103416, Sec. 225, 108 Stat. 4305, 4324 (1994) (discussed infra ); see also Aguirre
v. Meese, 930 F.2d 1292, 1293 (7th Cir.1991) (no private right of action);
Prieto v. Gluch, 913 F.2d 1159, 1165-66 (6th Cir.1990) (same); Orozco v. INS,
911 F.2d 539, 541 (11th Cir.1990) ("an incarcerated alien has no private right
of action under section 1252(i)")

The writ of mandamus has been abolished, but "[r]elief heretofore available by
mandamus" may be sought in an "appropriate action." Fed.R.Civ.P. 81(b). The
district courts have original jurisdiction in actions "in the nature of mandamus"
pursuant to 28 U.S.C. Sec. 1361. We thus refer to relief sought under Sec. 1361
simply as "mandamus."

See generally Paul M. Bator, et al., Hart and Wechsler's The Federal Courts and
the Federal System 1091 (3rd ed. 1988):
The development of remedies against federal officials and agencies follows two
important paths. The first, nonstatutory review, involves the system of remedies
generally available against any defendant in judicial proceedings. The remedies
may be derived from the common law ... or from a statute. The second path,
statutory review, involves more specialized remedies created by Congress for
the distinctive purpose of reviewing the actions of federal officials or agencies.
Mandamus is a form of nonstatutory review; the Administrative Procedure Act
authorizes statutory review of agency action generally. Id. at 1091-97.
The weight of scholarly authority suggests that mandamus and mandatory
injunctions ought to be judged by the same standards, see id. at 1094-95, or
even that mandamus adds nothing to what is already available by injunction
under 28 U.S.C. Sec. 1331 (the federal question statute) and ought to be
abolished entirely. See 4 Kenneth C. Davis, Administrative Law Treatise Secs.
23:8-:14 (2nd ed. 1978); III Kenneth C. Davis & Richard J. Pierce, Jr.,
Administrative Law Treatise Sec. 18.4, at 180-81 (3rd ed. 1994) (mandamus a
"largely outmoded remedy"; counsel ought simply to ask for an injunction).

See Giddings v. Chandler, 979 F.2d 1104, 1108, 1110 (5th Cir.1992) ("a duty is
owed to the plaintiff for the purpose of the Mandamus Act if--but only if--the
plaintiff falls within the 'zone of interest' of the underlying statute"; "standing
under the APA is determined by applying the same 'zone of interest' test as
applied to determine standing in the mandamus context"); Soler, 942 F.2d at
604-05 (citing Jarecki v. United States, 590 F.2d 670, 675 (7th Cir.1979)
(Wisdom, J.)) ("a duty is 'owed to the plaintiff,' " and the plaintiff thus has
standing under the Mandamus Act, "if the plaintiff falls within the 'zone of
interests' protected by the underlying statute"; "both the APA and the
Mandamus Act" are "means of compelling wrongfully withheld agency action,"
and there is no reason to infer that they have "differing standing requirements")

The appellants in this case have not made a claim under the APA. That may be
because, under the exclusivity provision of the Immigration and Nationality Act
(INA), 8 U.S.C. Sec. 1252(b), "the APA is not applicable to deportation
proceedings under the INA," Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th
Cir.1991); see generally Ardestani v. INS, 502 U.S. 129, 131-35, 112 S.Ct. 515,
518-19, 116 L.Ed.2d 496 (1991), and the INS has in the past asserted that the
APA does not govern adjudicatory proceedings under Sec. 1252. See Giddings,
979 F.2d at 1110 n. 44

Several courts faced with petitions for mandamus to enforce Sec. 1252(i) have
denied the remedy precisely because there is no private right of action under
the statute. See, e.g., Gonzalez v. INS, 867 F.2d 1108, 1110 (8th Cir.1989) (no
private right of action, so no mandamus available); Alvaro-Gallo v. U.S., 814
F.Supp. 1019, 1020 (W.D.Okl.1993) (no private cause of action enforceable
through mandamus); Medina v. United States, 785 F.Supp. 512, 514
(E.D.Pa.1992) ("[section] 1252(i) does not create a private cause of action in
favor of persons in [the alien's] position under ... the Mandamus and Venue
Act")
Other courts have decided not to decide. See, e.g., Rodriguez v. U.S., 994 F.2d
110, 111 (2nd Cir.1993) (case mooted by issuance of a final deportation order;
court did not decide "whether a criminal alien has any private right of action
under Sec. 1252(i) or any standing to seek mandamus"); Giddings, 979 F.2d at
1107 n. 22 (declining to decide "whether a private right of action is required for
mandamus relief" under Sec. 1361); Giraldo v. INS, 869 F.Supp. 396
(E.D.Va.1994).

10

But see Abreu v. U.S., 796 F.Supp. 50, 53-55 (D.R.I.1992) (following Soler )

11

Only the Fifth and Ninth Circuits have considered the question in Sec. 1252(i)
cases; they have reached opposite conclusions. In Soler, the Ninth Circuit

conceded that Sec. 1252(i) was enacted for the benefit of taxpayers, not
incarcerated aliens. Soler, 942 F.2d at 605. However, the court focused on the
element of the zone of interests test which allows standing "if the plaintiff's
interest has a plausible relationship to the policies underlying the statute." Id.
(quoting Clarke, 479 U.S. at 399, 107 S.Ct. at 757) (internal quotation marks
omitted). It held that the "plausible relationship" test was satisfied, and the
plaintiff had standing, because "the suit advances the stated congressional
purpose of reducing prison overcrowding caused by INS delay." Id
The Ninth Circuit's reasoning is not persuasive. That Soler's suit, if successful,
would advance the purpose of the underlying statute has much to do with
whether Soler would suffice as a third-party plaintiff--a question not at issue-but little to do with the separate question whether Soler's interest was of the
type protected by the statute. And the answer to the latter question is that it was
not: Soler's interest was in speedy release from confinement; Sec. 1252(i) was
enacted in order to ease financial burdens on federal, state and local prisons
resulting from lengthy detention of aliens awaiting deportation. Vindication of
Soler's interest would thus further the statute's goal, but Soler's interest was
plainly very different from that goal. That they coincided should not have been
dispositive.
After declining to decide "whether a private right of action is required for
mandamus relief," Giddings, 979 F.2d at 1107 n. 22, the Fifth Circuit explained
that Sec. 1252(i) was enacted to further the purposes of saving taxpayer money
and reducing prison overcrowding. The petitioners, the court ruled, were not
entitled to mandamus because they did not fall within the relevant zone of
interests, for a variety of reasons. See id. at 1109-10. The Fifth Circuit's
conclusion was correct, but, of the reasons it gave for its conclusion that the
zone of interests test was not satisfied, only one--which might have been offered
in direct response to the Ninth Circuit's rationale in Soler--is convincing: the
fact that a suit by an alien may advance a statute's purposes does not mean that
the interest the alien seeks to vindicate is within the zone of interests protected
by the statute.
12

The legislative history makes this clear:

These people are not being deported; the expedited procedure is not working;
the local and State jails are jammed up, the Immigration and Naturalization
Service has no incentive to give priority to these because the burden of inaction
falls on State and local governments and not on the Federal system.

132 Cong.Rec. H9794 (daily ed. Oct. 9, 1986) (statement of Rep. MacKay)
Not only will the Federal prison system benefit from an enhanced program to

deport aliens in its custody, but even if greater benefits can be anticipated at the
State and local level, if the program can reach that far. It may well be that a
supplemental request may be necessary to provide for additional personnel and
resources to expedite these deportations. However, any such increases would be
but a small fraction of the cost to provide prison and jail space for these
individuals.
132 Cong.Rec. S16,908 (daily ed. Oct. 17, 1986) (statement of Sen. Simpson).
Other courts have come to the same conclusion. See, e.g., Soler, 942 F.2d at
605 ("[section 1252(i) ] was apparently enacted for the benefit of taxpayers
rather than incarcerated aliens"); Prieto, 913 F.2d at 1165 ("Congress did not
intend to benefit criminal aliens when it enacted section 1252(i)")
13

That these potential plaintiffs would likely pursue their grievances through the
political process, not litigation, does not alter the analysis